5D02-3569 P.M. v. DCF

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State: Florida

Court: Florida Southern District Court

Docket No: 5D02-3569.op

Case Date: 12/15/2003

Plaintiff: 5D02-3569 P.M.

Defendant: DCF

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2003

P.M., FATHER OF P.M., A CHILD, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. ______________________________/ Opinion filed December 19, 2003 Appeal from the Circuit Court for Volusia County, C. Vernon Mize, Jr., Senior Judge. Dean G. Pepe of Pappas, Russell & Pepe, Daytona Beach, for Appellant. George P. Beckwith, Jr., Deputy District Legal Counsel and M. Celine, Cannon, Assistant District Legal Counsel, of Department of Children and Families, Daytona Beach, for Appellee. SHARP, W., J. P.M. appeals from an amended order of dependency adjudication/disposition which adjudicated his infant daughter P.M. dependent and placed the child in the temporary custody of the Department of Children and Families. Because of a number of errors and inconsistencies in the proceedings below, we remand to the circuit court to clarify whether or not it found the child dependent as to P.M.; and if not, the CASE NO. 5D02-3569

Department should have the discretion to refile such petition based on the information and findings of Judge Piggotte, at the subsequent hearing regarding custody of the child. The facts in this case suggest to us the child is at serious risk of being abused by P.M. and so we recite them in some detail. P.M. is not the biological father of the child. However, he is the child's "legal" father since the child was born during his marriage to the child's mother. Department of Health and Rehabilitative Services v. Privette, 617 So.2d 305 (Fla.1993) The parties were married in 1999 in the Fiji Islands. At the time, the mother was eighteen and P.M. was forty-two years old. P.M. returned by himself to the United States because the mother, a citizen of the Fiji Islands, had visa problems. She arrived here fifteen months later pregnant by another man. The child was born in August 2000. By March 2002, the mother left P.M. taking the child with her. P.M. did not provide any financial support for the child. The Department took the child into shelter care in July 2002. According to the shelter petition, P.M. had sexually abused the child and been violent toward the mother and the mother failed to protect the child from the abuse. The following month, the Department filed a petition alleging the child was dependant as to both P.M. and the mother. The Department alleged in part the child was abused or at risk of being abused because P.M. had fondled the child, allowed the child to touch his genitals, was violent towards the mother (the acts of violence included rape), and the mother failed to protect the child from this abuse. The adjudicatory hearing was held on September 19, 2002 before Judge Vernon Mize. The

mother filed a written consent to dependency in open court so the hearing involved only the dependency status of the child as to P.M. 2

Vickie Brandenburg, a nurse practitioner for the Department, examined the child in May 2002 after the case was referred to her for alleged sexual abuse by P.M. The medical findings were normal for the then twenty-one month old child. Brandenburg explained she would not expect any diagnostic findings since the allegations did not involve penetration. Thus her findings neither confirmed nor ruled out sexual abuse. Brandenburg conferred with the case coordinator and both agreed the child's risk for future abuse would be high based on the allegations. They recommended no contact between the child and P.M., and that the mother receive domestic abuse counseling. Police Officer Coomans received a report of domestic violence and sexual abuse in December 2001. The mother reported P.M. and the child had just gotten out of the shower, they did not have on any clothes and she witnessed the child repeatedly touch P.M.'s penis. The mother also reported she had been physically handled by P.M. P.M. admitted to Coomans these allegations were true. Police Officer Traylor investigated a report of possible sexual abuse by P.M. in May 2002. Traylor contacted the Department's investigator, who stated there were indicators P.M. had possibly been exposing himself to the child. Traylor spoke with the mother, who said she had seen P.M. undressed in front of the child and the child touching P.M. in a lewd manner on a number of occasions. Traylor contacted P.M. and he consented to a taped interview. During the taped interview, P.M. admitted he had been unclothed in a bathing situation and also in the living room. P.M. wanted to have his daughter explore his body. P.M. said this happened about five times. Traylor said "he told me it was a bonding thing between him and his child and that it was something that made the child feel closer to him and 3

that he said that he just wanted his child to explore the body." P.M. also complained about a lack of sexual contact with the mother. Eileen Copeland, a family support worker for the Easter Seals Healthy Family Program, visited the parties' home on a weekly basis. Copeland felt P.M. was trying to interfere with the mother's plan to become self-sufficient. For example, Copeland developed a plan for the mother to get her GED. P.M. told the mother that if she failed the test, she would be deported. P.M. was always present with them and Copeland felt he was monitoring her contact with the mother. The mother told her there was physical abuse in the home. One time, the mother left the home and asked Copeland for the number for a domestic abuse shelter. Christina Vestal, a child protective investigator for the Department, conducted a criminal background check on P.M. P.M. has an arrest record dating from 1983 for offenses including homicide, theft, and possession of a short barrel shotgun. An injunction against repeat domestic violence was on file against P.M. and he was prohibited from purchasing a firearm. The mother testified when the parties were first married, P.M. tied her up and had sex with her. After she came to the United States, he no longer tied her up. On several occasions, he put a dog leash on her neck and told her to bark like a dog. Several months after the child was born, the mother went to work and P.M. became physically abusive. He hit, kicked, shoved and tried to choke her. In February 2002, he tried to rape her. The mother obtained a two year restraining order against him.

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On one occasion in November 2001, P.M. was on the couch watching TV. Both he and the child were naked. He picked the child up and put her on his lap. Suddenly the mother saw the child was playing with his private part. When she asked P.M. about this, he said the baby was exploring herself. Sometimes when the mother had to work, she asked P.M. to bathe the child. On one occasion in January 2002, P.M. was giving the child a bath and the child was playing with his private part. The mother watched them doing this for about five minutes. P.M. did not try to stop the child until he noticed the mother was watching them. Then he told the child not to do that. The mother reported the incident to police. P.M. threatened that if the mother left him, he would try to get her deported. He told her that if she failed her GED, she would be deported. P.M. also used his criminal background to frighten her. He told her he shot a person in 1989 and has a gun buried somewhere. P.M. admitted he physically abused the mother. P.M. shoved the mother away from him when she was slapping him and twisted her arm and put it in an arm lock to prevent her from pinching and slapping him. P.M. also admitted a report had been made by the county health facility when the mother went for a physical examination and they noticed bruises on her body. P.M. admitted the child was in the house when he had these physical altercations with the mother. On one occasion, he was arguing with the mother in front of the child, the child started crying and the mother called the police. P.M. admitted he "encouraged" the mother to have sex with him. When asked whether he ever had sex with the mother against her will, P.M. replied he tried one time about two or three weeks before she left. P.M. wanted sex and the mother was unresponsive and started calling him names. P.M. became 5

angry, called her names and the two started wrestling. Finally, P.M. became so angry that he stood up with the mother on his lap. He then dropped her on the floor and walked out the room. This was the only time P.M. would have considered raping the mother and blamed her for deliberately making him so angry. P.M. denied threatening to have the mother deported, but did admit he warned her on occasions that certain actions of hers could be viewed by INS as a basis to deport her. P.M. admitted he has not provided any financial support since the mother left him. P.M. admitted there were times he would undress himself and the child to bathe her. If the bath was not ready, P.M. and the child would sit on the couch and watch television for a few minutes. The child touched him spontaneously and he told her no, that was not for little babies. This happened three or four times. P.M. uses his bare hands

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